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DUPS Amicus: The Question of Race in the Death Penalty

Over in America, in October 2018, the Washington Supreme Court abolished the death sentence, noting that it is a punishment plagued not only with arbitrariness but racial discrimination too. This highlights another side of the death penalty which is not often mentioned these days, almost as a taboo not only in society but in the courts as well.

The 2017 case of Buck v Davis in the US shows this. The defendant was found guilty of capital murder and the death penalty was imposed on him. One of the elements required for the death penalty to be applied is that the jury must be convinced of the future dangerousness of the defendant. In the trial judgement, expert evidence by the defendant attorney to prove that Buck was not in fact dangerous but it also said that African Americans are statistically more likely to be dangerous in the future, and this was crucial to the imposition of the death penalty on the defendant.

Buck appealed various times, each time unsuccessful, until he relied on the Federal Rule of Civil Procedure 60(b)(6) which permits the court to relive a party from the final judgement for any reason that justifies relied, the standard being that of ‘extraordinary circumstances’ to use that rule successfully. His attempt was denied and his subsequent appeal also failed on the basis that the extraordinary circumstances were not found in the mention of race during his trial, saying it was simply a de minimis concern.

Reaching the Supreme court, this court found that the previous court had not followed the necessary required procedure to deny the appeal to Buck, then moved to analysing the merits of Buck’s claims. They found that his claim did fulfil the Strickland criteria to prove inadequate counsel, especially that there was a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’. This step was fulfilled by the introduction of expert evidence conflating race and violence, which would likely have heavily impacted the juror’s decision.

The Court further found that the extraordinary circumstances required by Rule 60(b)6) were fulfilled and that the role of race was not de minimis. Due to the highly specific circumstances of this case, the backfiring on the defendant attorney on the use of this expert evidence, and the nature of the claims used by Buck of inadequate counsel and Rule 60(b)(6); it seems like this was a case of bad lawyering by the defendant attorney where the use of race in the procedure was a mistake which the court sought to end. For the exceptional circumstances of expert evidence bringing up the issue of race for the issue of sentencing to arise, would require a lot of chance, meaning the bar for future claimants is quite high in a very closed set of circumstances.

The result of Buck is that the Court rejects the explicit mentioning of race in Court proceedings as it challenges the validity of the justice system, but it doesn’t substantially address or solve the still very present issue of race in death penalty sentences. This is shown by the lack of black jury members in death-penalty trials, which, as evidenced by Buck can change the outcome, as race played a key role in the jury finding future dangerousness. A study of capital murder trials in North Caroline between 1990-2010 provides further support by finding that the question of race has a perverting effect on jury selection.

The question of race is still treated as a taboo subject in courts as its seen as something that should not be used or mentioned in the court procedure, but it should be dealt with face on by the courts as a first step to abolishing the death penalty in states where it is still present, as happened in Washington.

Matteo Toffanin

DUPS Amicus

28 Feb 2019


- Sherry F. Colb, ‘How Race Changes Things: The Supreme Court’s Decision in Buck v. Davis’ 10th March 2017, -accessed 24/02/19

- Harvard Law Review, ‘Effective Assistance of Counsel: Buck v Davis’ (2017) 131 HLR 263, accessed 24/02/19

- Merrit Kennedy, ‘Washington state strikes down death penalty, citing racial bias’ October 11th 2018, -accessed 24/02/19

- Emily Bazelon, ‘Where the death penalty still lives’ August 23rd 2016, accessed 24/02/19

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are listed in the bibliography above.

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